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Most of the writers who precede me in this issue bemoan the abandonment of the promise of Gideon. They call for a renewed effort to meet its goal of an adequate defense in criminal cases for all accused. I join in those sentiments. I do, however, believe we must be realistic. I am pessimistic about the likelihood of our political leaders ever on their own accord providing adequate funding for indigent defense. The spirit of the 60s is gone. We no longer have a John F. Kennedy or an Earl Warren.
The gap between the very rich and the very poor in America has widened. The standard political stance is to lower taxes and cut government spending. Most citizens will not accept fewer police officers, fewer garbage pickups and fewer street repairs. Accordingly, the cuts come largely off the backs of the poor.
To be sure, our nation recognizes, or at least gives lip service to, notions of equality. “One man, one vote” is an axiom of our political system, and any political leader who would speak against it would be criticized. On the other hand, any political leader who argued that an indigent criminal defendant should have the same resources for his defense as a millionaire would be laughed at.
Appeal to conscience
To some extent, our nation takes care of the homeless. And we do provide medical care to the aged. Providing the criminally accused poor with more than facially adequate counsel is another matter. It is counterintuitive to most people. The presumption of innocence is viewed as a legal fiction. The public believes that most of the arrested people are guilty. The public also wonders why society should provide the accused with the means to “beat” their cases. It trusts prosecutors to prosecute only the guilty. The recent spate of exonerations is viewed as an aberration or statistically insignificant. The Constitution guarantees the right to counsel, but not necessarily good counsel.
In New York City, where I live, a modest two-bedroom apartment sells for a million dollars. In this city, assigned counsel are paid $40 per hour for in-court time and $25 per hour for out-of-court time (with no benefits). I cannot help but be cynical.
Each year in New York we criminal defense lawyers argue for increased rates for indigent representation and lately (and belatedly) we have been joined by the court administration. Each year the governor and the legislators (who make more than $40 per hour) never get around to enacting an increase.
We cannot expect much from our elected officials. Nonetheless, we should continue to appeal to their consciences and the conscience of the public. We should at every opportunity point out that the criminal justice system is fallible and that innocent people are being imprisoned and sometimes killed by the state, in part because they do not have adequate resources to defend themselves.
Do what we do best
We should do what we do best – litigate. We should challenge constitutionally inadequate funding as we and our allies have begun to do in places such as Michigan, Montana and Georgia. We can speak loudly but, more important, we must carry a big stick, and use it when necessary. There are many judges, concerned with the lack of proper representation of the indigent in the courts over which they preside, who are sympathetic to our cause. It is in court, not the legislature, that Clarence Gideon succeeded, and where we as the champions of the Gideons of this century are most likely to succeed.
We also should not hesitate to act in our own self-interest. We must not be shy about demanding reasonable pay for ourselves and our colleagues. If necessary, as a last resort, in places with paltry and insulting compensation for assigned attorneys, such as New York, we should refuse to participate in court assignment programs. Such refusals might initially hurt our clients, but in the end our clients will receive better representation. The lack of sufficient attorneys to represent the indigent and the consequent effect on the administration of the courts may lead to some positive action by the courts or legislatures.
Gideon
Lastly, we must realize that this is not an issue only for the indigent defense bar and the indigent accused. When we lower the bar for acceptable representation for any defendant, it affects all of us and all of our clients. Bad law is made and bad lawyering becomes acceptable. In the spirit of Gideon, all criminal defense lawyers must join in the fight for equal justice.
